Monday, July 9, 2012

Constitutional Originalism and Linguistic Plasticity

This is something I have been meaning to write for sometime, and now that the Affordable Care Act has been decided, and we've just celebrated our nation's 236th birthday, I think it's the appropriate moment to give it a try.

Supreme Court Justice Anton Scalia, well know from his originalist streak in Constitutional analysis, gave an interview last January. He made the point that as far as he reads the Constitution, women have protections against discrimination inherent in the original text.
You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society. (bold mine - JMG)
Reading Scalia's response, one of the immediate thoughts that jumped into my head was that the justice's instance that “You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box” breaks down with various groups in society are not enfranchised to use said ballot box. I mean, yes, it is very simple and elegant when all you need is to persuade you fellow citizens about what you believe to be the proper policy or representative; but when the issue is about fundamental rights like suffrage or equal status under law, then no, it's not simply just "a legislature and a ballot box." Agitation for fundamental protections (like say, the legal ability to have a spouse) almost always requires cultural shift. In other words, it is really easy for Scalia to glibly extoll on the virtues of the democratic process, when the entire apparatus of the democratic system favors his European, heterosexual male viewpoints.

Linking this back to questions about how much 'original intent' plays into judicial interpretation, I am really bothered by Scalia's lack of recognition to the plasticity of language. Dr. Steven L. Taylor touches on this in a recent essay.
The words simply do not mean the same to readers now as they did then. Not only has the language itself changed, but the way we comprehend the world is different. Regardless of one’s view of the ACA, the fact of the matter is that the word “commerce” means something different to a person in 2012 than it did to a person in 1787. Consider the following terms and do a quick mental trip through time: “war,” “army,” “arms,” “Commander-in-Chief,” and so forth. Beyond the specific words and their meanings over time, there is much in the Constitution that is simply vague. What, pray tell, is (to pick a big one) “the general welfare”?
Concepts like "who 'citizens' are?", or "what does 'equal protection under law' mean?" are legally important (and discrete), but very philosophically abstract. The intent of the phrase "all men are created equal" was really really groundbreaking at the time it was made, but today its originalist meaning of enfranchising only white, male landowners strikes me (and, I would hope—most) as hopelessly patriarchal. To me there's a bit of intellectual cowardice in the insistence on being exclusively concerned about original intent, because it is a real failure to engage messy concepts like context and viewpoint. Sure, the Founding Father's didn't intend for women to be enfranchised citizens; but that's highly related to the fact that we were still fighting wars over enlightenment concepts like individual self-determination and representative government.

Just because we had a prevailing understanding of a word in 1776, it does not follow that we should preserve this understanding in amber for all time, for all generations of Americans to be subject to. The context of the Constitution's development, and the viewpoints of its writers should be very pertinent to our current interpretation of the document's meaning, but we need to reconcile how the diversification of legal and intellectual perspectives advances the core ideals of the United States Constitution; namely a government of the people, by the people, for the people.

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